Month: February 2017

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

“Religious Freedom” is the buzzword of the season. Both state legislatures[1] and the Trump Administration[2] are moving to outline protections for “freedom of conscience,” even when such protections impede other government mandates. Such measures, if passed, will likely face court challenges, and may, ultimately, be reviewed by the Supreme Court. As such, Judge Neil Gorsuch, if confirmed, will help define the contours of our religious rights.

Given Gorsuch’s open religiosity,[3] his views on religious rights have drawn significant media attention and speculation.[4] Some argue that Gorsuch’s faith would lead him to broad readings of religious liberty rights, particularly in cases where the exercise of such rights clash with anti-discrimination mandates.[5] Others note his membership in a fairly liberal congregation and come to the opposite conclusion.[6] While Gorsuch has written extensively on issues of ethics and morality off the bench,[7] he has relatively few decisions on religious freedom and liberty to his name. Looking at this small universe of cases, we find that Gorsuch takes a broad view of religious liberty, and, if confirmed, would likely be a champion for expanding the right to “freedom of conscience.”

Perhaps no opinion of Gorsuch’s elucidates his view of religious liberty as clearly as his opinion in Hobby Lobby Stores Inc. v. Sebelius.[8]Hobby Lobby involved a challenge to the contraceptive-coverage requirement under the Affordable Care Act.[9] The plaintiffs, the Greens, the owners of a for-profit corporation, maintained religious objections to providing coverage for four FDA-approved contraceptive devices, and sued to strike down the mandate.[10] After the District Court denied an injunction, the Tenth Circuit, in an unusual move, decided to hear the case as an en banc court.[11] A divided court narrowly found for Hobby Lobby, ruling both that for-profit corporations maintained religious rights,[12] and that the Religious Freedom Restoration Act (RFRA) exempted them from the mandate.[13]

Gorsuch concurred with the decision, writing separately on the related issue of the Anti-Injunction Act.[14] Gorsuch’s opinion, nevertheless, included a powerful defense of the Greens’ claim, and of the expansiveness of RFRA. In his opinion, Gorsuch described the Greens as unpopular religious minorities who need the protection of RFRA.[15] Requiring them to provide contraceptive coverage, he noted, would be requiring them to be complicit in wrongdoing.[16]

Gorsuch also laid out an expansive interpretation of RFRA, stating:

“Congress structured RFRA to override other legal mandates, including its own statutes, if and when they encroach on religious liberty.”[17]

RLUIPA’s Mandates Do Not Require Accommodation of All Religious Needs

Alongside RFRA, the Religious Land Use and Institutionalized Persons Act (RLUIPA) extends a higher standard of scrutiny to regulations that interfere with the religious freedom of state prisoners.[18] In interpreting RLUIPA, Gorsuch has not taken the broad view of religious liberty that he elucidated in Hobby Lobby. Rather, his views have been more mixed. While Gorsuch has defended religious freedom rights for prisoners, he has also shown a willingness to reject RLUIPA claims.

Gorsuch has rejected most of the RLUIPA appeals he has heard with fairly little discussion of the scope of the statute and the rights it affords.[19] However, he does elaborate on his understanding of RLUIPA in Abdulhaseeb v. Calbone. Abdulhaseeb involved a challenge to prison policy that denied a Muslim inmate a halal diet. The Tenth Circuit reversed a lower court ruling dismissing the prisoner’s RLUIPA claims.[20] In concurring with the majority opinion, Gorsuch emphasized the limited nature of the court’s decision and RLUIPA’s mandate.[21] RLUIPA, Gorsuch noted, applies in cases where prison officials are essentially starving the prisoner by denying him any food that he can eat.[22] However, lesser deprivations of religious liberty, such as the denying of meals that fall short of complete deprivation may not necessarily fall afoul of RLUIPA.[23]

At the same time, Gorsuch laid out a powerful affirmation of the religious rights of prisoners in Yellowbear v. Lambert. Mr. Yellowbear, a member of the Northern Arapahoe tribe, sought access to the prison sweat lodge for religious exercises.[24] The prison refused, citing security concerns, and the Tenth Circuit, in an opinion by Gorsuch, reversed.[25]

Gorsuch begins his opinion with a paean to the religious rights of prisoners:

“While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them…”[26]

Gorsuch goes on to criticize efforts by judges to parse religious beliefs and exercises.[27] Instead, he notes that RLUIPA authorizes only an inquiry into the sincerity of religious beliefs, not into their importance or significance.[28] In so finding, Gorsuch rules that the prison must accommodate Mr. Yellowbear’s religious beliefs.

The Establishment Clause Does Not Bar Government Displays of Religion

Gorsuch’s jurisprudence also suggests that he does not consider the Establishment Clause to set up a “wall of separation” between church and state. Instead, Gorsuch takes an originalist view of the Establishment Clause, turning to understandings of church-state separation from the time of the founding of the Constitution. Gorsuch has further elucidated this view through a number of dissents from denials of en banc rehearing involving cases where the Tenth Circuit struck down government displays of religious artifacts. In 2008, Gorsuch dissented from denial of en banc in a decision striking down the display of the Ten Commandments.[29] In dissent, he argued that “displays of the decalogue alongside other markers of our nation’s legal and cultural history do not threaten an establishment of religion.”[30]

Similarly, in 2010, Gorsuch was one of four dissenters from the Tenth Circuit’s decision not to rehear en banc a ruling striking down the display of memorial crosses on public roadsides.[31] In that case, Gorsuch joined a broader dissent by Judge Paul Kelly,[32] as well as dissenting separately.[33]

Overall Assessment

In his 11 years on the federal bench, Gorsuch has participated in less than fifteen cases involving the Religion Clauses, RFRA, or RLUIPA. Through these cases, however, Gorsuch has displayed his respect for religious belief, and a commitment to protect it against government regulation. In cases such as Hobby Lobby and Yellowbear, Gorsuch has written aggressively against government impediments to religious exercise. Furthermore, Gorsuch has also decried interpretations of the Establishment Clause that take religion out of the public sphere. As such, Christians who are concerned that their beliefs may be under attack will find comfort in his decisions.

However, it must be noted that Gorsuch does not limit his use of “religious liberty” to Christians alone. His writings make it clear that even minority religions deserve the protections of RFRA, RLUIPA, and the Free Exercise Clause. As such, Gorsuch’s opinions could presumably be used to protect the Muslim student seeking to wear a hijab in their place of employment, a Sikh soldier’s right to serve wearing a turban, and a Hindu child’s right to have meat-free alternatives in school.

Nevertheless, Gorsuch’s broad interpretation of RFRA should concern minority groups, including African Americans, and the LGBT community, who have faced religious discrimination. Taken to the logical extreme, such a broad reading of religious liberty could be used as a “sword” to avoid complying with anti-discrimination laws. In other words, a businessperson could use their religious beliefs to justify only hiring men in the workplace, or refusing to serve interracial couples at a restaurant, or declining to offer spousal benefits to same-sex couples. Such an understanding of RFRA could cripple efforts at civil rights enforcement.

Additionally, with both state legislatures and the administration pushing to allow “religious liberty” exemptions to anti-discrimination mandates, judges will likely be called upon to decide cases where both parties claim violations of religious liberty. For example, in a case involving a Christian employer who seeks to prevent a Muslim employee from praying, arguing that such prayer violates their own faith, it is unclear whose religious rights would triumph. Gorsuch’s relatively limited jurisprudence on these issues does not yield an answer on his own approach to such a question.

Overall, Gorsuch looks set to lead a significant expansion of the scope of “religious liberty.” It will be up to the Senate Judiciary Committee to dialogue with Gorsuch to determine the nature and implications of such an expansion.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

[15]Id. at 1152-53 (“[RFRA] doesn’t just apply to protect popular religious beliefs; it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve a refuge of religious tolerance.”).

[16]Id. at 1152 (“As they understand it, ordering their companies to provide insurance coverage for drugs and devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their faith disallows.”).

[23]Id. (“It is surely a burden to forgo an occasional meal. But it’s not a substantial burden, and RLUIPA proscribes only government actions that substantially burden religious exercise.”) (emphasis in original).

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

Studying Fourth Amendment cases in which Judge Neil Gorsuch has authored a majority opinion, a concurrence, or a dissent, it is my conclusion that Gorsuch enacts a highly disciplined approach to this area of law. His opinions scrupulously guard the rights of unsympathetic defendants, exhaustively examine the whole corpus of American law to gain an understanding of each case, and go out of their way to ensure that every defendant enjoys the legal protections to which they are entitled at law. This essay will examine some of the cases I reviewed in arriving at this conclusion.

In U.S. v Carloss, police officers entered the curtilage of the defendant’s home, without a warrant, to conduct a knock and talk, a common police method designed to discover evidence of illegal conduct while talking with whomever answers the door. In doing so, the officers walked onto the front step of the home, passing numerous “No Trespassing” signs. Judge David Ebel, writing for the panel majority, found no Fourth Amendment violation from the police “knock and talk.”[1] Gorsuch wrote a lengthy dissent, turning to common law at the “the founding” to illustrate why he found this search unreasonable.

In this dissent, Gorsuch noted that the government relied on two theories to support their position. First, the government “suggest[ed] that its officers enjoy an irrevocable right to enter a home’s curtilage to conduct a knock and talk . . . arguing that . . . the knock and talk is an investigative technique approved by the Supreme Court.”[2] Alternatively, they argued that police possess only a revocable right to walk onto the front step and knock on the door, and that “a homeowner may avoid a knock and talk only by hiding in the home and refusing to answer the door.”[3]

Gorsuch disagreed with both these stances, explaining that “an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment’s protected areas,” and that “[t]he founders understood, too, that a search of a constitutionally protected space generally qualifies as unreasonable when undertaken without a warrant, consent, or an emergency.”[4]

Judge Gorsuch then, in a nod to his originalist leanings, noted that “the common law at the time of the founding did not require a property owner to express his intent to revoke a license to enter in any particular way. Indeed, all that was traditionally required were express words … or … an act … indicating an intention to revoke.”[5] Judge Gorsuch summed up his Carloss dissent with the following words: “Our duty of fidelity to the law requires us to respect all these law enforcement tools. But it also requires us to respect the ancient rights of the people when law enforcement exceeds their limits. In this case the two arguments the government offers to justify its conduct can claim no basis in our constitutional tradition.”[6]

Other cases reveal a similar fealty to the Fourth Amendment’s original intent. In U.S. v. Krueger, Judge Gorsuch concurred with an opinion rejecting the validity of a warrant issued across jurisdictional boundaries.[7] In U.S. v Ackerman, Judge Gorsuch held that the National Center for Missing and Exploited Children acted as an agent of the government in searching Mr. Ackerman’s effects without a warrant, and that their search of a suspected child pornographer violated his constitutional rights.[8] In both cases, Judge Gorsuch demonstrated adherence to the law in favor of unsympathetic defendants.

Additionally, in other criminal cases, Gorsuch has shown the capacity to restrain executive overreach. In U.S. v Cos, Gorsuch dissented from a panel decision affirming the grant of a suppression motion, arguing that the government’s appeal of the motion was untimely.[9] Specifically, Gorsuch argued that the government should be required to follow the same rules of timely filing as a habeas petitioner.[10] In U.S. v Games-Perez, Gorsuch criticized circuit precedent preventing a defendant who was not aware of his felon status from presenting a mens rea defense.[11]

Perhaps no case better illustrates Gorsuch’s skepticism of prosecutorial overreach than his opinion in U.S. v. Rentz. Rentz involved a question of whether 18 U.S.C. § 924(c)(1)(A) (which prohibits carrying a firearm during a drug-related or violent offence) allows multiple charges from the single use of a firearm. Gorsuch answered this question in the negative, rebuking government prosecutors for employing syntactical errors to dramatically increase the number of separate charges they could press against a defendant for the single discharge of a firearm.[12]

Gorsuch interpreted the statute using “plain old grade school grammar, [while] the government’s contrary interpretation require[d] some sophisticated syntactical somersaults,”[13] piling on additional charges without proving any further uses, carries, or possessions. Gorsuch accused the government of myopically focusing on the statute’s adverbial phrases “without even a stolen glance at the verbs those phrases modify.”[14]

Many liberals oppose the nomination of Gorsuch to be on the Supreme Court on various grounds, including skepticism about his willingness to stand up to executive power. However, taken as a body, Gorsuch’s writings indicate that he will not hesitate to restrain the Executive, defend the Fourth Amendment, and rigorously protect the rights of the accused.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

On May 18, 2016, when Donald Trump released his first list of potential Supreme Court nominees, there was a notable omission: Tenth Circuit judge Neil Gorsuch.[1] The omission signaled that Trump was different than previous Presidents: focused on “out of the beltway” candidates and unimpressed by Ivy League credentials.[2]

Of course, last week, Trump chose Gorsuch for the nomination, bypassing Judge Thomas Hardiman, who worked as a taxi driver to pay for law school, and Judge William Pryor, who dedicated his entire life to government service. In his announcement speech, Trump emphasized Gorsuch’s intelligence and qualifications, while downplaying the nominee’s privileged background. Nevertheless, to understand the kind of justice Gorsuch will be, it is necessary to look not just at his judicial record, but at his legal career before he took the bench.

Childhood and Education

Neil McGill Gorsuch was born in Denver, Colorado on Aug. 29, 1967. Gorsuch’s mother, Anne Gorsuch Burford, was a prominent Colorado Republican who served in the legislature in the mid-1970s. In 1981, Burford was confirmed to serve as President-elect Reagan’s EPA Administrator.[3] Gorsuch moved to D.C. with his mother shortly after and grew up in the Beltway, attending Georgetown Preparatory School. He went on to Columbia University and attended Harvard Law School on a Truman scholarship. While at Harvard, Gorsuch served as a summer associate in a number of prominent law firms, including Davis, Graham & Stubbs, Cravath, Swaine & Moore, and Sullivan & Cromwell.

Legal Career

After graduation, Gorsuch clerked for conservative Judge David Sentelle on the U.S. Court of Appeals for the D.C. Circuit. He went on to Supreme Court clerkships with Justices Byron White and Anthony Kennedy. After his clerkships, Gorsuch spent ten years in the Washington D.C. office of Kellogg, Huber, Hansen, Todd, Evans & Figel (“Kellogg”), the last seven as a partner. During this time, Gorsuch also attended University College, Oxford, getting a Doctorate of Philosophy for his research on assisted suicide and euthanasia.

At Kellogg, Gorsuch participated in several prominent contracts, RICO, and securities cases. In 2002, Gorsuch led his client, Conwood, to the then largest private damages award in antitrust litigation, securing a $1.05 billion judgment against United States Tobacco Company.[4] Furthermore, Gorsuch was one of the lead attorneys in two cases that secured the rights of dissenting class members to appeal the approval of a class action settlement.[5]

During his time at Kellogg, Gorsuch occasionally penned articles on legal issues. In 2004, he published an article exploring the legality of assisted suicide.[6] In Feb. 2005, Gorsuch wrote for the National Review, opining that liberal activists were using the courts to move on policy issues that they were unable to win in the political sphere.[7]

In 2005, Gorsuch was hired to be Principal Deputy to Assistant Attorney General Robert McCallum. In that role, he helped manage the work of the Department of Justice, focused on the Antitrust, Civil, Civil Rights, Environment, and Tax Divisions. In this role, Gorsuch reviewed briefs, decided which cases should be filed and settled, and implemented various civil justice initiatives.

Nomination and Confirmation

On May 10, 2006, Gorsuch was nominated by President George W. Bush for a Colorado seat on the Tenth Circuit Court of Appeals. Gorsuch received a cursory hearing on June 21, 2006, with only Senator Lindsay Graham present from the committee.[8] While Gorsuch was questioned about his writings on assisted suicide,[9] there was no objection to his nomination in committee. Gorsuch was confirmed by the Senate in a voice vote without opposition on July 20, 2006, a mere two months after his nomination.

Shortly after his confirmation, Gorsuch’s first book, The Future of Assisted Suicide and Euthanasia, was published by Princeton University Press.[10] The book elaborates on Gorsuch’s previous writings, laying out his opposition to the legalization of physician assisted suicide.[11] Specifically, Gorsuch criticizes the arguments in support of assisted suicide and argues that the intentional ending of human life is morally wrong.[12]

Drawing Conclusions

It is stating the obvious to note that, as a white male, Judge Gorsuch does not add gender or racial diversity to the Supreme Court. However, what is more notable is that Judge Gorsuch’s experience and credentials are very similar to that of another justice serving on the court: Chief Justice John Roberts. Gorsuch, like Roberts, is a graduate of Harvard Law School. Roberts and Gorsuch both spent much of their careers in Big-law practice, with short stints in the federal government. Additionally, Gorsuch, like Roberts, spent most of his professional life in Washington D.C., only moving to Colorado upon his confirmation to the Tenth Circuit.

However, unlike Roberts, who endured a long, protracted confirmation, Gorsuch was confirmed with hardly any debate or fanfare. Despite his conservative credentials,[13] and his youth, Gorsuch found support from every single Democrat in the Senate. The two months from nomination to confirmation for Gorsuch is particularly astounding given the extended delays many later nominees faced. While some of this is attributable to a less contentious time in confirmation politics, another factor is the relatively slim paper trail the nominee then possessed. Other than a handful of law review articles and editorials, most focused on assisted suicide, Gorsuch had published little, and as such, had said little to attract opposition.

This will not be the case for his current confirmation. Gorsuch has ten years of opinions for critics to dig through to find objectionable material. Nevertheless, Gorsuch’s corporate background, and smooth confirmation to the Tenth Circuit speaks to his likely elevation, and suggests that, as a justice, he would be a conservative in Roberts’ mold.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.